from the enjoy-prison,-dumbass dept

In the pantheon of dumb criminals we've covered at Techdirt, we've already handed out awards for dumbest criminal, best dumb criminal in college, and criminal with the most hubris ever. While most crimes wouldn't qualify as "funny" per se, I have to admit that I rarely am genuinely angry at any of these idiots. It's more along the lines of head-shaking and chuckling at the stupidity of it all.

Twenty-one-year-old Daron Stinson is facing a host of felonies after he "pretended" to rob and shoot at frightened pedestrians with a pellet gun that looked like a handgun. In one video he points his gun at a 51-year-old man salting a sidewalk and demands the man load it in his trunk. Stinson also posted multiple videos on Instagram of himself shooting the pellet gun as his victims react with terror.

I'm not posting any videos of Stinson's uploads, because I don't want to give even a moment of time to his horrifically unabashed asshole-ish-ness. Seriously, it's these types of people that make me want to believe in Hell, just so I have some place to put them.

"He considers it funny," Rodney Stinson, his father, told NBC 10. "He does a lot of other things. Nothing with the gun is funny. Nothing. I don't consider it funny."

Well, good for you. None of us do, either. Fortunately, thanks to his own uploads, Stinson was arrested and will hopefully be facing a prison sentence and the life-long stigma of being a convicted felon. I can't help but think back to a recent post about an innocent child being shot dead in Georgia for the crime of holding a Wii controller, yet this jackass doesn't get nabbed in Philly until he uploads videos of his own crimes to the internet?

from the hypocrisy,-thy-name-is-USTR dept

As we've noted many times before, one of the biggest problems with TAFTA/TTIP and TPP is the almost complete lack of transparency about the negotiations. Although the politicians like to assert that this is "inevitable" during any trade agreement where tough haggling over numbers needs to take place, this deliberately ignores the point that TPP and TTIP are not just trade agreements: they touch on areas that are the domain of public policy and democratic decision-making -- things like regulations, standards, approaches to copyright and patents etc. According to the European Commission's own figures, reductions in trade barriers are only expected to account for around 20% of the claimed economic benefits that could flow from TAFTA/TTIP: the rest comes from reducing "non-tariff barriers" -- the rather loaded name given to things like health, safety and environmental standards.

Against that background of a total refusal to allow the general public access to negotiating documents -- even those that are tabled, and therefore no longer secret -- this story in the Financial Times about the US Trade Representative, Michael Froman, demanding greater openness is, at first sight, rather surprising (NB: subscription or free registration required):

The US push for greater transparency in EU regulations was first made in broad terms by Michael Froman, US trade representative, in a speech in Brussels last September. But in specific proposals put forward in closed-door negotiations in recent weeks the US has stepped up the campaign and made clear that it is one of Washington's main negotiating priorities, according to people close to the talks.

Evidently, the USTR is looking for greater transparency only in the process of drawing up EU regulations, not more generally. That's plainly because US companies intend to lobby Brussels even more vociferously in this area, and to do that they need full access to draft regulations. Here's how Froman wants that to happen:

The US has proposed that EU regulators be required to publish the proposed texts of regulations and open them to public comment. It also wants regulators to be required to consider comments and explain why they had adopted -- or failed to adopt -- outside suggestions when they finalise regulations.

If such an approach were adopted, it would give US companies far more scope to intervene in the EU regulatory process, and perhaps enable them to take legal action against EU regulators -- a threat that would boost US (and EU) corporate influence considerably.

Of course, what's striking about those demands is that the reasoning given in support of them applies equally to the TAFTA/TTIP negotiations: we need to have the proposed texts published so that the public can comment on them and argue against measures there that are likely to have negative consequences for society. We also need to require negotiators to explain why they adopted or failed to adopt suggestions. The FT article quotes US officials as saying:

there is a growing emphasis on transparency in regulation and greater public consultations are increasingly important.

Except, it would seem, when it concerns secretive regulatory agreements like TAFTA/TTIP and TPP.

from the urls-we-dig-up dept

We've talked about monopolies of various kinds around here before, because monopolies are oftentimes fascinating examples of markets not quite doing what most folks think markets should do. Monopoly issues are also not as black-and-white as they're made out to be in the news, and there are some intriguing (unanswered) questions about how to properly regulate monopolies -- and numerous examples of unintended consequences of poor regulation. Here are just a few more stories on monopolies that you might have come across.

from the anticlimactic-and-anticonsumer dept

In an evening session just a few minutes ago, the House of Representatives voted 295-114 in favor of H.R.1123, the "Unlocking Consumer Choice and Wireless Competition Act". As we discussed this morning, though it started out as a reasonably good bill intended to address the use of the DMCA to squash activities that have nothing to do with copyright, last-minute changes introduced by Rep. Bob Goodlatte poisoned its intent by introducing a possible future exception for bulk phone unlocking.

Unfortunately, the changes were so last-minute that the reaction and withdrawal of support by Reps. Zoe Lofgren and Anna Eshoo was not enough to turn the tides. Though the problematic text is carefully worded for plausible deniability — allowing the House to claim it hasn't technically taken a side — I doubt it would take long before phone companies and their lobbyists started using this oh-so-obvious bit of leverage gifted to them in the bill. For now, it falls to the Senate to pass their version of the bill, so there's still a chance we'll see these problems addressed.

from the perhaps-you-should-read-the-original-proposal? dept

Last week, when perusing the newswires, I kept seeing references to a most diabolical plan that was supposedly being crafted by the FCC. The agency, I was told by countless news outlets, was engaged in an insane attempt to effectively bring back the Fairness Doctrine -- awful rules justly killed off back in 1987 that tried to force fair media coverage. Under this new horrifying plan, the insufferably nosy government would, I was told, shortly thereafter begin telling reporters and newsrooms what they could and couldn't cover. Newsrooms that failed to play along with this effort, I was told by FCC Commissioner Ajit Pai himself, would possibly lose their broadcast licenses, given that the voluntary survey was secretly not voluntary:

The FCC also wants to wade into office politics. One question for reporters is: "Have you ever suggested coverage of what you consider a story with critical information for your customers that was rejected by management?" Follow-up questions ask for specifics about how editorial discretion is exercised, as well as the reasoning behind the decisions. Participation in the Critical Information Needs study is voluntary—in theory. Unlike the opinion surveys that Americans see on a daily basis and either answer or not, as they wish, the FCC's queries may be hard for the broadcasters to ignore. They would be out of business without an FCC license, which must be renewed every eight years."

Knowing the FCC like I do after a decade of covering them, I thought that it seemed a little out of character for a timid, marginally-competent agency terrified of disrupting the status quo to suddenly take LSD and begin such a ham-fisted attack on common sense. As such, I did something crazy -- I read the actual study proposal. Apparently, this absolutely insane frontal assault on everything we hold dear in the god-damned universe was little more than a survey trying to ferret out how to best help disadvantaged, poor citizens (especially those for whom English may not be a first language) get the information they need. FCC Mignon Clyburn, who previously owned an African-American newspaper in South Carolina, has long held minority media ownership as a core policy focus.

It's a fairly routine and entirely voluntary field survey designed to gather data. Nothing more. There's not really any actual policy even attached to it. There was certainly nothing included that could drive any sane or reasonable individual to the conclusion that newsrooms would soon be under the iron fist of a new FCC-crafted information-control and propaganda gestapo. Many of the complaints against the "Critical Information Needs' (CIN) survey seemed focused specifically on how volatile and provocative the questions asked were, though I can't find any questions (page 25, pdf) that are even remotely controversial (perhaps I missed them or I'm not squinting my eyes or tilting me head just right).

You could try to argue the $900,000 survey was a waste of money, but then you'd have to admit the looming hearings about the survey as probably just as wasteful. You could also try to argue that such inquiries push beyond the FCC's technology-driven mandate (although you'd face counter argument that media ownership analysis is part of their job under the Communications Act). What you wouldn't be able to do with the slightest bit of factual support is suggest this was an FCC attempt to stifle free speech and newsroom freedom.

But people did, and the hysteria forced the FCC to issue a statement (pdf) saying that the survey was on hold until they could tone down the not-actually-inflammatory-at-all questions. The FCC noted that the survey was part of their Congressional requirement under section 257 of the Communications Act to study barriers to entry for small business owners and entrepreneurs (with an obvious focus on minority business owners). To try and placate the rioting, reading-challenged hordes, the FCC notes that any revamped study won't ask media owners or reporters what they think:

"To be clear, media owners and journalists will no longer be asked to participate in the Columbia, S.C. pilot study. The pilot will not be undertaken until a new study design is final. Any subsequent market studies conducted by the FCC, if determined necessary, will not seek participation from or include questions for media owners, news directors or reporters. Any suggestion that the FCC intends to regulate the speech of news media or plans to put monitors in America's newsrooms is false."

So in the end, the big "victory" is that a study trying to analyze minority media needs gets gutted and will be less useful. Hooray! Good job, team! Make no mistake, the furor really wasn't about the study itself, it was part of a long-standing concerted effort to gut any dwindling regulatory oversight the FCC has over the broadcast or broadband industries by demonizing the agency. The Fairness Doctrine is pretty routinely trotted out as a bogeyman on that front; former FCC Commissioner Robert McDowell tried to argue that supporting net neutrality would also bring the long-ago dismantled policy back from the dead. That's not to say that there haven't been small attempts to bring the Fairness Doctrine back, but those efforts never go anywhere because almost everyone realizes it's a stupid idea. It's more useful as a political scarecrow than anything.

Those still worried shouldn't be; the FCC is so terribly afraid of upsetting industry and the status quo that they can't even admit fundamental realities (like the broadband industry isn't competitive and prices are high). They lack the intestinal fortitude to implement significant good policy of any meaningful measure, much less bad ideas of such head-rattling, impossible scale. If we can all agree that government dictating what newsrooms can cover is idiotic, perhaps we can all also agree that those same newsrooms should be hiring people who can actually read?

from the millions-of-assault-victims-still-wander-the-nation's-playgrounds dept

Considering the type of people cops interact with the most, you'd think law enforcement officers be the most broad-shouldered of individuals, easily shrugging off the various slights and indignities they're subjected to on a daily basis. You'd think that, but you'd be wrong.

According to police, a 13-year-old boy was charged as a juvenile with felony aggravated battery against a police officer Wednesday after he hit the officer in the arm with a snowball while the officer was parked in his vehicle in the 4900 block of West Congress Parkway about 3:20 p.m.

A cop, a person not entirely unlike anyone else ever hit by a snowball, found the impact of snow against his arm to be nearly unbearable. The main difference between Joe Citizen and Officer Snowball is that the Chicago police officer has the power to toss the offending person into the gears of the criminal justice system. Which is what he did. Obviously, this has provoked plenty of negative reaction.

"I think that's ridiculous — it's such a big charge," said Latanya Powell, a construction worker on the block. "It's just going overboard. I can see if it were a weapon and harm was done, but it was just a snowball.

"This is a case of kids being kids."

Boys will be boys, but that's only acceptable if they don't extend their natural mischievousness to include this particular uniformed manchild. Once you cross that line -- a line only a cop can see -- you're finished. Say goodbye to childhood and hello to a criminal record that will affect you for years to come.

Not everyone was as nonplussed as Latanya Powell. Local idiot educator Ray Fields felt this was a totally appropriate response to snowball-throwing.

"If [the boy] had gotten away with it, who's to say what they'd do next? If it doesn't stick to them now, they'll be 16 or 17, and they'll have a gun," Fields said, adding that he has experience with local teens as a teacher and was the victim of a home burglary by neighborhood teens in 2010.

Hmm. Well, if we follow Fields' reasoning (and that of the unnamed cop), we arrive at a couple of conclusions, both equally asinine.

A. Throwing snowballs at authority figures is a gateway drug to a life of crime. (Because snowballs magically become guns when the snowball thrower hits "age 16 or 17.")

B. If a kid hitting a cop with a snowball is felonious battery, then kids everywhere are committing this crime -- repeatedly -- after every snowfall (with the attendant "snowballs lead to gunplay" concerns nowhere to be seen).

Conclusion A is a dead end. It's not unlike the assertion that because criminals play video games, playing video games leads to criminal acts. Many criminals threw snowballs at their friends and authority figures (adults, teachers, cops) during their formative years, therefore snowball throwing leads to criminal acts. Rather than punish criminal behavior, those deploying this stunted logic want to crack down on non-criminal behavior in the deluded hope of preventing future criminal acts. All the way wrong, all the way down.

Conclusion B just exposes the fact that there are multiple sets of rules in play at any given time: one for citizens, one for cops and one for when the two intersect. Johnny hits Timmy with a snowball and it's "playing." A cop hits another cop with a snowball and it's "playing." But Johnny hitting a cop with a snowball is a felony.

Hanging a felony charge on a kid for snowball throwing is not only completely absurd, it has a much greater chance of converting him to a criminal than his cop-targeting snowball throwing does. Way to go, law enforcement (and enablers like Ray Fields): you're generating scofflaws just as fast as you can trump up charges against them.

from the because-that-beats-the-movie-experience? dept

Over the last week or so, there have been a bunch of news stories about the (now gone, as we'll explain in a moment) twitter account, 555uhz, which had been tweeting every half an hour what appeared to be a captioned frame-by-frame image from the classic 1980s movie, Top Gun, starring Tom Cruise. It was slightly weird and quirky, like plenty of random Twitter accounts. This one had picked up a little over 6,000 followers, but late last week Paramount began sending DMCA notices to the account, leading to Twitter shutting down the account entirely, likely for getting so many infringement claims.

We are writing to you on behalf of our client, Paramount Pictures Corporation (“Paramount”). Paramount is the owner of copyright and other intellectual property rights in and to the “Top Gun” motion picture (hereinafter referred to as "Top Gun"). No one is authorized to copy, reproduce, distribute, or otherwise use Top Gun without the express written permission of Paramount.

Notwithstanding this, it has come to our attention that a user of your website, @555uhz, is distributing the Top Gun film, frame by frame, via your website. The following URLs are some examples from the user’s Twitter account, with additional frames being uploaded continuously:

But, really, this seems like a massive overreaction by Paramount -- doing its typical "if we didn't approve it, it must be taken down" approach to copyright. In what world is seeing this going to somehow harm Paramount?

Is it really likely that someone will follow along with the one tweet every half an hour and decide they no longer need to see the actual movie? While it's anecdotal, in the last week when there was so much buzz about the account, I saw multiple people mention that because of the tweets, they wanted to go out and rewatch the movie (with at least one person admitting to never having seen it before). So, if anything, it seemed to generate more attention for the movie. And, just like typical shortsighted copyright maximalists, even things that act as good promotion must be killed "because... piracy."

Way to go Paramount lawyers. You've once again used copyright maximalism to hold back your own marketing.

Separately, it seems that a fairly strong argument can be made that this is fair use. It seems to be pretty clearly transformative. It's hard to see how it harms Paramount. It's not commercial. True, assuming that the full thing was tweeted, the "amount" of the work weighs against fair use, as does "the nature of the copyrighted work" (a movie), but on balance there's a reasonable argument that this particular setup would be considered fair use.

As a random aside, there's been some random speculation as to why the account was named @555uhz, but the folks over at Vice have a pretty clear explanation, discussing the framerate being shown. After first noting that a typical movie is 24 frames per second (fps), Vice calculates the actual framerate of the tweets:

But, the real framerate of @555uhz isn’t 24 frames per second, nor is the Twitter account sampling 24 frames per second. The real framerate is the rate at which the account posts frames to Twitter, just like the real framerate in a movie is the rate at which a spool of film projects images onto a screen. We can figure the Top Gun tweet-rate out easily enough: 48 tweets a day, two tweets an hour. That winds up being 2/60 or .034 frames per minute. Now, convert that to frames per second: .000555. Look familiar?

Frames per second is a more specific version of the unit Hertz (Hz), and 1 Hz is just one full cycle of some periodic thing (like sound waves, for example) happening in one second. So we actually have .000555 Hz, which converts nicely to 555 microHertz (uHz).

from the hard-data-is-optional dept

It has been about a year since the Center for Copyright Information (CCI) launched the United States' "six strikes" anti-piracy notification system with the help of the nation's largest ISPs. The service varies slightly by ISP, with carriers either briefly throttling your connection or temporarily locking you behind a "click through" walled garden unless you acknowledge receipt of some "educational" materials on copyright (not surprisingly, concepts like fair use are excluded). Any costs of this additional ISP clerical work are obviously passed on to broadband subscribers.

Since launch there has been absolutely no data released on how many people have been sent warnings, how many people have proceeded through all of the layers, and no consumer feedback has been shared on their experiences with the program. ISPs refuse to talk whatsoever about the program, and we've seen absolutely no data on how effective the program's appeals systems for the falsely accused (who have to pay $35 for the honor of protesting their innocence) have been.

"A national effort to crack down on Internet piracy through a "six strikes" system is seeing success, according to the program's director...Jill Lesser, who runs the system as manager of the Center for Copyright Information, said fears about the system were misplaced..."It's a non-punitive system" that is "intended to be education-based," Lesser told The Hill in an interview...There were "early examples of positive feedback," said Lesser said, adding that she hopes more analysis will show that Internet providers sent out more first and second notices and fewer fifth and sixth notices, which would demonstrate that users stopped sharing infringing content."

Yes, your fears have been misplaced and the program is clearly working, and to prove it, the only evidence we'll offer you is -- our claim that your fears have been misplaced and the program is clearly working. While the CCI hasn't been willing to release any data, traffic headed to BitTorrent networks has either remained static or increased, and overall shared files on websites like The Pirate Bay have increased. One problem CCI will face when trying to show data (should that actually ever happen) on the program is that many BitTorrent users have simply moved toward BitTorrent proxy and VPN services in order to hide themselves from the watchful eye of their ISPs. Those users would show up as no longer being copyright infringers, when in reality they'd simply be hiding their network behavior.

It's not a stretch to imagine that whatever data gets released, it will somehow magically show that the program is not only a smashing success, but that the entertainment industry is justified in expanding it further. As it stands, nothing happens to users after the sixth strike, and nobody tracks users who move from ISP to ISP. As such, it's only a matter of time before more great ideas get introduced. How about a ban on VPNs and proxies? How about a taxpayer-funded organization that tracks offenders across ISPs? Fines for those who reach the sixth level? Our non-transparent data clearly shows that all these things are necessary. Trust us.

from the i've-seen-this-movie-before dept

At some point, governments around the world are going to start learning that attempting to stifle free speech and communication via protests and the internet is almost always going to backfire on the offending government. Previous iterations of this plotline have been demonstrated in Ukraine, Egypt, and several other Middle East nations that participated in the so-called "Arab Spring."

The Electronic Frontier Foundation made note that Venezuelans working with several different ISPs lost all connectivity on Thursday of this past week. Users lost connectivity to the major content delivery network Edgecast and the IP address which provides access to Twitter’s image hosting service while another block stopped Venezuelan access to the text-based site Pastebin.

CONATEL director William Castillo suggests that the internet cuts were not due to the protests directly. CONATEL is the country’s media regulation network, and Castillo suggested via Noticias24 that online attacks were being waged. CONATEL, he suggests, blocked linkes "where public sites were being attacked."

Even though the attempt to shift blame for internet shutdown on outside hack attacks is a very common kind of government bullshit, it might just be believable, if only that same government wasn't also going around and shutting down television stations that were saying things the government didn't like. In the case of NTN24, a Venezuelan cable news channel, the government isn't even trying to pretend the shutdown isn't politically motivated.

Venezuela’s president said that a Colombia-based cable news channel was ordered to be removed from cable lineups in Venezuela because of its coverage of an antigovernment protest. President Nicolás Maduro said Thursday that the channel, NTN24, had tried to “foment anxiety about a coup d'état.” He said that he gave the order to pull the channel because “No one is going to come from abroad and try to perturb the psychological climate of Venezuela.”

No, no, of course not Senor Maduro, you're perfectly capable of perturbing the psychological climate of Venezuela all by yourself. As with Egypt, and Tunisia, and most recently Ukraine, this won't work. In fact, it's likely again going to have the opposite effect of provoking the protesters even more than they've been already. At some point the lesson will eventually be learned that in an era where free speech and citizen press have been expanded exponentially, attempts to shut both down won't be tolerated.

Perhaps President Maduro would like to speak with Viktor Yanukovych, if he wasn't in hiding from people on whom he attempted to put these exact same restrictions.

from the hey,-man dept

Dish has already had a long and winding road getting its "Hopper" DVR first to market, then keeping it there. The company has been engaged in ongoing disputes with broadcasters, who continue to try and argue that the device violates copyright law because it skips commercials -- and generally provides consumers with interesting, convenient functionality that users might actually want. Fox had no luck killing consumer choice and innovation at the 9th Circuit, and ABC is currently in New York attempting to reverse a New York federal judge's refusal to issue an injunction.

While Dish is busy defending Hopper against broadcasters, it's also busy battling the obvious confusion people often have between digital video recorders and the deceased Easy Rider and Apocalypse Now actor Dennis Hopper. Responding to a broad trademark application by the Hopper estate (aka the Trustees of the Hopper Art Trust), Dish has filed an opposition to protect its ad-skipping DVR. The Hopper Estate registered the "Hopper" trademark in 2012 with an eye on "sunglasses, motorcycle helmets and all sorts of electronic devices." Dish itself filed for a trademark back in 2011 -- before Hopper's death:

"According to Dish's notice of objection, the Dennis Hopper "Hopper" mark "is likely, when used in connection with the goods covered by the subject application, to cause confusion, to cause mistake or to deceive, with consequent injury to [Dish Networks] and the public." Dish says it filed an "intent to use application" back in September of 2011 -- before Dennis Hopper's trustees, before TV broadcasters realized what Charlie Ergen's company was up to -- on "Hopper" in a class of goods covering electrical and scientific apparatus."

Surely after the dispute is settled by the USPTO, there's a middle ground here for both sides to jointly sell motorcycle helmets and a clothing line that somehow combines the edgy, quirky, rambling style of the deceased Blue Velvet actor, with the convenience of being able to "stick it to the man, man" by skipping advertisements.

from the and-not-just-terrorists dept

A few weeks ago, Glenn Greenwald, while working with NBC News, revealed some details of a GCHQ presentation concerning how the surveillance organization had a "dirty tricks" group known as JTRIG -- the Joint Threat Research Intelligence Group. Now, over at The Intercept, he's revealed the entire presentation and highlighted more details about how JTRIG would seek to infiltrate different groups online and destroy people's reputations -- going way, way, way beyond just targeting terrorist groups and threats to national security.

Among the core self-identified purposes of JTRIG are two tactics: (1) to inject all sorts of false material onto the internet in order to destroy the reputation of its targets; and (2) to use social sciences and other techniques to manipulate online discourse and activism to generate outcomes it considers desirable. To see how extremist these programs are, just consider the tactics they boast of using to achieve those ends: “false flag operations” (posting material to the internet and falsely attributing it to someone else), fake victim blog posts (pretending to be a victim of the individual whose reputation they want to destroy), and posting “negative information” on various forums.

For years, people have said that the purpose of groups like the NSA and GCHQ were merely "signals intelligence," which were about understanding and decoding signals, not about taking any sort of offensive standpoint. However, as the Snowden docs have repeatedly revealed, the mandate of these organizations has long been much more offensively based, and they seem to have little problem with using questionable tactics to destroy people's lives. As Greenwald notes, is this really a power you trust a totally secretive government agency with almost no real oversight to use without it being abused?

There's a lot more in Greenwald's writeup, which you should read, but just a few of the key slides are worth reading to get a sense of what's going on here. This isn't just about infiltrating terrorist organizations. They seem to be using these kinds of techniques on just about anyone they dislike, which harkens back to the Hoover-era FBI infiltrating and seeking to discredit anti-war groups. It also raises very serious questions about whether these efforts are being used to stifle political expression.

The full presentation is embedded below. The cover slide is really something...

from the before-the-DMCA,-did-people-just-break-into-libraries-and-steal-microfiche? dept

Update: An Autharium representative reached out to the Passive Voice blog to admit that sending a DMCA takedown was a "mistake". It's not clear whether this means that it was done in error, or that they've acknowledged their attempted abuse of the system.

The DMCA notice: the multi-tool abused by many. The most common abusive form is the issuance of takedowns to muffle criticism, which is what we have here.

Autharium, a British ebook self-publishing platform, took a bit of a beating last March for its absolutely horrendous Terms and Conditions. Passive Voice, a writer-oriented blog, was the first to expose just how much authors were giving up when they signed with Autharium. In exchange for publishing through Autharium, authors gave the platform exclusive WORLDWIDE rights to "produce, publish, promote, market and sell your Work in any Digital Form" for "the entire legal term of copyright." That's life plus 70 years in the UK.

If an author somehow managed to talk Autharium into reverting the copyright back to him or her, Autharium still retained exclusive, worldwide digital distribution rights. And "any Digital Form" included far more than just ebooks. Paragraph 1.4 of the publishing T&C originally listed the following as being under Autharium's exclusive control.

“Digital Form” means any and all electronic and/or digital forms and media whether now known or later invented or developed including (by way of examples only): (i) any e-book (i.e. using any means of manufacture, distribution or transmission whether now known or later developed including but not limited to electronic and machine-readable media and online and satellite based transmission intended to make your Work available for reading) (“eBook”); and (ii) any electronic version (other than an eBook) for performance and display (whether sequentially or not) in any manner (together with accompanying sounds, images, interactive and/or search features if any) by any electronic means, method or device (“Electronic Version”).

Word quickly spread around the web to other author/ebook-oriented sites like Writer Beware and The Digital Reader. The consensus was that this contract was even more exploitative than those offered by other infamous self-publishing platforms/vanity presses like Author Solutions.

For avoidance of doubt this does not include physical or audio book forms, videos, film, television, merchandise or game forms.

As it noted on top of the "new" T&C page, this was overhauled in March of 2013, an effort which stripped away almost everything ridiculous and exploitative about the original. This massive restructuring allowed Autharium to add the following line to its "About" page, something it couldn't honestly have said at any point before the March 2013 revamp. (The wording isn't present in previous versions.)

No draconian length of copyright contracts, no signing away of movie, merchandising or physical book rights.

So far, so good. While it's a shame Autharium felt the original T&C was somehow acceptable, it did at least respond quickly to the criticism by making extensive changes. If only Autharium had left it at that.

While it could technically be argued that the "copyrighted text" was "taken" without permission, what was actually included in Passive Voice's post was five paragraphs out of 83 total. And it was clearly used as part of the commentary. It's very difficult to explain what's wrong with a contract's Terms & Conditions without quoting it directly, as was done here. Furthermore, there's nothing in the site's Terms & Conditions that forbids use of the site's text in this fashion.

This has every appearance of a company -- which originally did the right thing and fixed its horrendous contractual text -- attempting to whitewash the past, starting with the blog post that triggered the backlash. But why? Why do this when you've already addressed the problematic T&C and have started to win writers back?

In the opinion of many, including PG [Passive Guy, blogger at Passive Voice], the legal remedies for bad faith takedown notices that are simply attempts at censorship are inadequate. For a further discussion of this problem, see this post on the WordPress Blog.

PG thinks an alternate remedy – sunlight – might work the best in this case.

Here is PG’s original commentary on the Autharium language without the inclusion of any language from the Autharium terms of service. PG is including his commentary so his opinions about what he believed to be unfair contract terms as they existed on March 10, 2013, will show up on Google.

Fortunately, The Passive Voice has a large enough audience so Google incorporates new posts into its search database very quickly.

And sunlight Autharium will receive. Instead of simply acknowledging that it had screwed up in the past, Autharium is trying to bury it. It changed its T&C for the better, but is now undoing any forward momentum by attempting to erase the past. This will only result in another round of negative press, and a company that used to look exploitative will now become a company that is currently censorious.

from the a-big-mistake dept

As you may recall, there's been a ridiculous (on many levels) fight concerning the legality of "unlocking" mobile phones. Let's go through the history first. Because of section 1201 of the DMCA, the "anti-circumvention" provision, companies have been abusing copyright law to block all sorts of actions that are totally unrelated to copyright. That's because 1201 makes it illegal to circumvent basically any "technological protection measures." The intent of the copyright maximalists was to use this section to stop people from breaking DRM. However, other companies soon distorted the language to argue that it could be used to block certain actions totally unrelated to copyright law -- such as unlocking garage doors, ink jet cartridges, gaming accessories... and phones. There have been court cases about a number of these issues, with (thankfully) many courts ruling against this kind of abuse, though it still happens.

Separately, every three years, the Librarian of Congress gets to announce "exemptions" to section 1201 where it feels that things are being locked up that shouldn't be. Back in 2006, one of these exemptions involved mobile phone unlocking. Every three years this exemption was modified a bit, but in 2012, for unexplained reasons, the Librarian of Congress dropped that exemption entirely, meaning that starting in late January of 2013, it was possible to interpret the DMCA to mean that phone unlocking was illegal. In response to this there was a major White House petition -- which got over 100,000 signatures, leading the White House to announce (just weeks later) that it thought unlocking should be legal -- though, oddly, it seemed to place the issue with the FCC to fix, rather than recognizing the problem was with current copyright law.

Following this, a slew of new bills were introduced in Congress, many of which attempted to narrowly deal with the specific issue, while leaving the larger issues untouched. Many of these bills were incredibly problematic, though eventually the consensus seemed to get behind one bill before... nothing. Fast forward a year and nothing has changed, though the main bill, supported by Rep. Goodlatte, called the Unlocking Consumer Choice Act, is scheduled to go to a vote on Tuesday. It had gone through the basic markup process and some adjustments had been made to make it a good first step towards fixing problems.

As of last week, a bunch of folks, who were concerned about the issues with unlocking and how Section 1201 was a problem, were supportive of this bill and were expecting to publicly speak out in favor of getting the bill passed. Except... late last week, with no explanation whatsoever, and no consultation with others even though the markup and Judiciary Committee process had already concluded, Rep. Goodlatte slipped into the bill a little poison pill/favor to big phone companies, adding a seemingly innocuous statement as section (c)(2):

No Bulk Unlocking--Nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale, or to authorize the Librarian of Congress to authorize circumvention for such purpose under this Act, title 17, United States Code, or any other provision of law.

While this gives Goodlatte and other maximalists some sort of plausible deniability that this bill is making no statement one way or the other on bulk unlocking, it certainly very strongly implies that Congress believes bulk unlocking is, in fact, still illegal. And that's massively problematic on any number of levels, in part suggesting that the unlocker's motives in unlocking has an impact on the determination under Section 1201 as to whether or not it's legal. And that's an entirely subjective distinction when a bill seems to assume motives, which makes an already problematic Section 1201 much more problematic. Without that clause, this seemed like a bill that was making it clear that you can't use the DMCA to interfere with an issue that is clearly unrelated to copyright, such as phone unlocking. But with this clause, it suggests that perhaps the DMCA's anti-circumvention clause can be used for entirely non-copyright issues if someone doesn't like the "motive" behind the unlocker.

Given that, both Public Knowledge and EFF have pulled their support for the bill. As Public Knowledge noted:

"The new language specifically excluding bulk unlocking could indicate that the drafters believe that phone unlocking has something to do with copyright law. This is not a position we support. Even if Congress believes that bulk unlocking is a problem, it's clear that it's not a copyright problem, just as individual unlocking is not a copyright problem. A bill designed to scale back overreaching copyright laws should not also endorse an overreach of copyright law."

EFF made a similar statement:

By expressly excluding [bulk unlocking], this new legislation sends two dangerous signals: (1) that Congress is OK with using copyright as an excuse to inhibit certain business models, even if the business isn’t actually infringing anyone’s copyright; and (2) that Congress still doesn’t understand the collateral damage Section 1201 is causing. For example, bulk unlocking not only benefits consumers, it's good for the environment—unlocking allows re-use, and that means less electronic waste

Two members of Congress who have been closely associated with these issues, Reps. Zoe Lofgren and Anna Eshoo, also pulled their support of the bill late Monday as well, expressing their clear outrage at how this change was slipped in after the fact, in a letter sent to their colleagues in the House:

After this bill was marked up and reported out of committee, a new section was added to the bill without notice to or consultation with us....

They furthermore point out that it's ridiculous that Congress is not fixing the broken anti-circumvention parts of the DMCA, and could possibly be strengthening them with this sneaky change of language:

In his concurring opinion in Lexmark v. Static Control Components, Judge Merritt wrote: "We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves..." The court's holding prevented Lexmark from using dubious copyright claims and an overboard reading of 17 USC 1201--the same section the Unlocking Consumer Choice Act alters--to prevent third parties from creating competing printer ink cartridges. The issue is similar here.

Congress should work to roll back abusive practices that use copyright law to prevent owners from having control over the devices they lawfully own. What it means to "own" a device that has been purchased is what's at stake here. The new addition to the bill puts the effort to stand up for the property rights of the owners of technology devices at risk.

It is sad that the bipartisan consensus reached during mark-up in the Judiciary committee to improve the law has been destroyed by a secret decision of the majority after the bill was reported out.

Unfortunately, the bill was deemed so uncontroversial that it's been listed on the suspension calendar of the House, which is where non-controversial bills are put to ensure quick passage. That means that, not only did Goodlatte slip in a significant change to this bill that impacts the entire meaning and intent of the bill long after it went through the committee process (and without informing anyone about it), but he also got it put on the list of non-controversial bills to try to have it slip through without anyone even noticing.

Either way, it seems that even if the bill does pass, it won't do anything to fix a very broken part of the DMCA and, in fact, could make it somewhat worse. Politics as usual when it comes to anything having to do with copyright.

from the remind-me-not-to-watch-your-films dept

You might remember how Voltage Pictures, creators of The Hurt Locker, was the first studio in the United States to really try to take a stab at copyright trolling, suing large numbers of purported P2P copyright violators en masse. Despite struggles with this approach the company has proven persistent, with Voltage boss Nicolas Chartier insisting that anybody that criticizes his company's approach to business is a "moron and a thief." The company recently scaled down their efforts slightly, earlier this month filing a lawsuit against 31 anonymous people for using BitTorrent to obtain their latest film, Dallas Buyers Club.

After spreading such love and joy in the States, the company turned its sights on Canada in late 2012, where they took specific aim at a small independent ISP by the name of TekSavvy. Over the weekend, a Canadian court ruled that TekSavvy would have to hand over the personal data of roughly 2,000 customers who obtained copies of Voltage films via BitTorrent. Those users can now look forward to "settlement-o-matic" letters from Voltage demanding anything from $100 to $5,000 under Canada's federal Copyright Act.

While the court did feel bound by precedent to allow the release of user names, Judge Kevin Aalto at least recognized the hazards of copyright trolling, including numerous safeguards such as the requirement that Voltage have the precise wording of these letters signed off on by the court before they get sent to end users:

"In order to ensure there is no inappropriate language in any demand letter sent to the alleged infringers, the draft demand letter will be provided to the court for review," Aalto wrote. "Any correspondence sent by Voltage to any subscriber shall clearly state in bold type that no court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages."

The court also required that any subscriber must be able to request a full copy of the Judge's order, which Voltage will have to pay for. TekSavvy's legal bills must also be paid in full before any information is exchanged, and Voltage is prohibited from exposing any of the data to the media, or putting it to use for "other purposes." All told, under Canadian law it may not make financial sense for Voltage to pursue this further. Canadian law professor Michael Geist does a nice job showing how being a copyright troll in Canada isn't going to be worth the expense:

"Even if Voltage were successful in convincing a court to award ten times the marketplace value of a $15 movie - $150 - the economics do not make sense. Assuming Voltage manages to convince 75% of recipients to settle for the $150 demand, the campaign would generate $225,000 in revenue. Yet that must be offset by paying the TekSavvy costs before any names are released (which alone were estimated at $200,000 at the federal court hearing), covering their own costs (assume a matching $200,000 to collect the IP addresses, retain experts, and fund the litigation), and dealing with thousands of demand letter recipients (if each letter costs $30 in time and money that adds another $45,000)."

Between the restrictions prohibiting Voltage from using their usual scare tactics in the letters and the high costs of pursuing things further, it doesn't look like Voltage is going to have much fun during their visit north of the border after all.